David Ross, QC, RIP

In the many panics during the Bar Readers’ Course when I was expected to adventure incompetently into the criminal law, the criminal lawyers whom I made sure to be nice to referred me to ‘the Bible’, Ross on Crime. Leafing through it disconsolately one day, I noticed the chapter entitled ‘Jazz’.  What a revelation.  After that, I knew he was a character, but not until I read his obituary in The Age did I realise how much of a character the Bar has lost.  I wonder whether the very English form of academic eccentricity which has always been a halmark of the Bar, and the qualities of true professionalism which it sounds like Ross personified, are on the wane, whether any of my contemparies will be David Rosses of the future.

I never met the man who passed away recently having succumbed to motor neurone disease.  I did read his book on advocacy, Advocacy.  It is beautifully written, short.

The obligation not to allege ‘fraud’ without an appropriate evidentiary foundation: what is ‘fraud’?

Solicitors and barristers are obliged not to make allegations of criminality, fraud or other serious wrongdoing in ‘court documents’ without an adequate factual foundation. The rule for Victorian barristers is rule 34. This post explores what ‘court documents’ are, what ‘fraud’ means in this context, and what an adequate factual foundation is, in part by looking again at AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02, treated in the previous post, a decision of the Full Court of the Supreme Court of the Northern Territory.  It also notes a bizarre anomaly between the rules which govern Victorian and other states’ solicitors and between the rules which govern Victorian solicitors and Victorian barristers in this regard. Continue reading “The obligation not to allege ‘fraud’ without an appropriate evidentiary foundation: what is ‘fraud’?”

$19,500 fine for making complaint against lawyer without adequate evidentiary foundation

A Full Court of the Supreme Court of the Northern Territory delivered judgment in AM v Legal Practitioners Disciplinary Authority [2010] NTSC 02 a week ago. The Darwin lawyer, AM, lodged a complaint with the NT Law Society alleging that a competitor firm, Cridlands, which used to act for her client, had acted in the face of a conflict of duties.  That complaint was dismissed.  The Law Society then turned the lens on the author of the complaint and investigated her for making allegations of serious impropriety without a proper evidentiary foundation.  She was successfully prosecuted and her appeal failed. The Supreme Court confirmed the decision of the Legal Practitioners Disciplinary Tribunal (here and, in relation to penalty, here), finding the lawyer guilty of professional misconduct.  According to the NT News, the lawyer was ordered publicly to apologise to the lawyers about whom the complaint was made, complete professional conduct and ethics courses, and ordered to pay a fine of $19,500.  The costs bill is presumably very high.

The duty which was breached was formulated at [141] as follows:

‘the obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where the practitioner is protected by privilege and, indeed, in all circumstances, to maintain standards of decency and fairness. The appropriate standard of care is exercised by ensuring that there is evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relation to the allegations.’

Continue reading “$19,500 fine for making complaint against lawyer without adequate evidentiary foundation”

Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)

Several recent posts have been about the implied waiver which is said to be an incident of clients suing their former solicitors for negligence.  They are simply case notes.  Some of the cases are English.  All were decided under a law different from that which from 1 January 2010 applies in Victorian court proceedings, a law which has existed in fellow uniform evidence jurisdictions NSW and the Commonwealth only since the beginning of 2009, when amendments to the client legal privilege provisions came into operation.  The purpose of this preamble is to warn against assuming that the law stated in these cases, which represent the common law at the time and in the place of their decision, is the law today. I’m not saying it’s not, right; I just can’t be bothered for the moment to work it out.

Paragon Finance Plc v Freshfields (a firm) (1999) 1 WLR 1183; [1999] EWCA 955 is a unanimous decision of the English Court of Appeal’s Chief Justice, Lord Bingham, and Lord Justices Brooke and Chadwick.  The question the Court identified for decision was:

‘if a client sues his former solicitors claiming damages for alleged negligence in the handling of a commercial transaction between the client and a third party, does the client’s waiver of legal professional privilege (implied from the bringing of the proceedings against the former solicitors) apply not only to confidential communications between the client and those former solicitors relating to that transaction but also to confidential communications between the client and different solicitors whom he later instructed to pursue and settle his claim against the third party?’ Continue reading “Yet another implied waiver case: Paragon Finance Plc v Freshfields (a firm)”

No problem with solicitors asserting liens over passports

Passports remain property of the government even after they have been issued, and it is a crime to have in your possession or control the passport of another without a reasonable excuse: ss. 6A and 9A Passports Act, 1938.  A solicitor may exercise a lien over property of the client received by her in the course of a retainer.  Is a client’s passport a document over which she may assert such a lien? The answer is yes, because the client’s status as bailee of the passport is a sufficient proprietary interest for the purposes of lien law to bring it within the class of things, as against the client, over which a lien may be exercised: CYX v Council of the Law Society of NSW [2009] NSWCA 430.  Another aspect of this decision is the subject of this post.

Benecke v National Australia Bank: imputed waiver by criticising lawyers in proceedings to which they are strangers

Benecke v National Australia Bank (1993) 35 NSWLR 110 is one of the best known Australian cases about imputed waiver in relation to making allegations about the course of the retainer of former lawyers.  It is not, however, a case about imputed waiver in professional negligence suits against former solicitors, since this was not such a suit.  Rather, in the course of a proceeding to set aside the settlement of a previous proceeding, Ms Benecke claimed that her solicitor and the other side’s solicitor had settled her case without Ms Benecke’s authority, and gave a detailed account of her conversations with her QC.  The defendant, seeking to uphold the settlement called Ms Benecke’s former QC as its witness.  Ms Benecke’s complaint upon appeal that such evidence was privileged and should not have been admitted was rejected on the basis that Ms Benecke had waived privilege over the conversations by setting out her version of them. Continue reading “Benecke v National Australia Bank: imputed waiver by criticising lawyers in proceedings to which they are strangers”

The concurrent operation of the new Evidence Act, 2008 and of the Legal Profession Act, 2004

Section 8 of the Evidence Act, 2008 says it does not affect the operation of the provisions of other Acts.  So, although the compellability and competence provisions and the admissibility provisions of the new Act are often spoken of as a code, those who say so are thinking about the continuing operation of the common law, rather than statute law on the subject which survives the legislative change consequent upon the enactment of the new Act.  That caused me to look through the Legal Profession Act, 2004 with a view to finding out how the law of evidence in cases involving lawyers might differ from that to be found in the new Act.  I found that it:

Basic facts and useful resources about the uniform evidence legislation

Now I have too many words in my Advanced Evidence paper, so you can have the first off-cut.

The uniform evidence legislation is comprised of:

  1. The Evidence Act, 1995 (Cth.), which commenced almost 15 years ago on 18 April 1995;
  2. The Evidence Act, 1995 (NSW), which commenced on 1 September 1995;
  3. The Evidence Act, 2001 (Tas.), which commenced on 17 December 2001;
  4. The Evidence Act, 2004 (Norfolk Island), which commenced on 1 December 2004;
  5. The Evidence Act, 2008 (Vic.), which commenced on 1 January 2010.

The Victorian Act was amended before it commenced (including a Victoria-specific widening of the hearsay exceptions), by the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 and the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act, 2009, so buy the forthcoming (green) reprint rather than the (grey) numbered Act, and be careful for the time being to check whether Austlii’s consolidation is up to date. Continue reading “Basic facts and useful resources about the uniform evidence legislation”

Admissibility rulings may be revisited

Res judicata does not attach to interlocutory orders.  It is open to the trial judge, for example, to vary them.  So much I knew.  Until I read In the Marriage of Bowron (1982) 8 Fam LR 651 (this adventure into the law of evidence is taking me to strange places), I had never thought about whether a ruling as to the admissibility of evidence is final.  The answer is, if this case remains good law, that it is not final, even if the result of a voir dire.  Justice Baker said: Continue reading “Admissibility rulings may be revisited”

Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son

Back from Vanuatu, a pleasant place, I am slaving away at a 10,000 word paper on the application of the Evidence Act, 2008 to civil cases involving lawyers.  In due course, no doubt, I will subject you to a serialised version of it.  One of the things I am considering is that species of implied waiver of legal professional privilege which is an incident of suing your lawyer, so expect more case notes on that topic than you could reasonably want to read.  First up: Lillicrap v Nalder & Son [1993] 1 WLR 94, which seems to be the English decision most often cited for the proposition that upon a client suing their lawyer, the client’s client legal privilege over the solicitor’s file, and over communications between them more generally, is waived to the extent necessary to allow the lawyer to respond to the suit.  It was recently affirmed in Esso Australia Resources Pty Ltd v BHP Billiton Petroleum (Bass Strait) Pty Ltd [2007] VSCA 224, a decision of Acting Chief Justice Maxwell and Justice of Appeal Chernov.  And in Mann v Carnell (1999) 201 CLR 1, the majority said: Continue reading “Imputed waiver of privilege upon clients suing former lawyers: Lillicrap v Nalder & Son”

Transitional provisions for introduction of Evidence Act, 2008 (Vic.)

Update, 4 March 2010: The changes to legal professional privilege apply retrospectively to communications which pre-date the commencement at the beginning of this year of the Evidence Act, 2008.  See this post.
Update, 15 February 2010: ‘Quis Custodiet Ipsos Custodes’ has published a useful (but not exhaustive) summary of the provisions here.

Original post: Before you start worrying about my sanity, note that I did not write this on New Year’s Day; I just set it to publish on that day. No doubt you’re wondering about the transitional provisions for the Evidence Act, 2008 (Vic.) which came into operation on 1 January 2010, being the ‘commencement day’.  They were inserted into the Act (no. 47 of 2008) by an amending Act which came into operation before or at the same time as the principal Act, namely the Statute Law Amendment (Evidence Consequential Provisions) Act, 2009 (Vic.) (no. 69 of 2009).  The thrust of them is that the new Act applies to hearings which commence in 2010, but there is lots of detail.  They follow below, but you should also be aware that the Evidence Act, 2008 was amended before it came into operation, but the consolidated version is still not yet available on Austlii: Continue reading “Transitional provisions for introduction of Evidence Act, 2008 (Vic.)”